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Chapter 09. Judiciary In India (Polity & Constitution of India Notes)

JUDICIARY IN INDIA

THE SUPREME COURT

➤ The supreme court of India replaced the federal court which was setup under the Government of India Act, 1935.
➤ It came into existence on January 28, 1950.
➤ It stands at the apex of the judicial systems of India.
➤ The constitution consists provisions related to the union Judiciary in Articles 124 to Art. 147 in Part V of the constitution.
➤ It consists of one chief justice and 30 other judges.
➤ The power to increase or decrease the number of judges in the supreme court rests with the ➤ The senior most judge of the supreme court is appointed as the chief justice of India.
➤ Judges are appointed by the president after consultation with such Judges of the supreme court and of the High court as the president may deem necessary.
Qualification
➤ Must be a citizen of India.
➤ Has been for atleast ten years as an advocate of a High Court or of two or more such courts in succession or ➤ is, in the opinion of the president, a distinguished jurist.
➤ Has been a judge of high court
Term
➤ The Chief Justice & other Judges hold office till 65 years of age.
Salary
➤ Chief Justice gets 1 lakh per month, other judges get 90 thousands per month ➤ Besides the salary, they are entitled to a rent free accomodation and other allowances.
➤ During financial emergency salary and other allowances can be reduced.
Removal of Judges :
➤ A motion seeking the removal of the judge can be preferred before either house of the parliament.
➤ If it is to be introduced in the Lok Sabha, it should be signed by not less than 100 members of the Lok Shaba.
➤ If it is to be introduced in Rajya Sabha, it should be signed by not less than 50 members.
➤ The resolution should be supported by a majority of total membership of both the houses & by 2/3rd majority of the members present and voting.
➤ The motion can be moved only after a prior notice of 14 days given to the judge.
➤ The judge in question has the right to defend himself or through his counsel before the judicial committee.
➤ The parliament may or may not act upon the report of the judicial committee.
Jurisdiction
Original Jurisdiction : The supreme court settles all disputes between centre state, State – State etc.
➤ There are certain provisions in the constitution which exclude from the original jurisdiction of the supreme court, certain disputes, the determination of which is vested in other tribunals.
(i) Disputes specified in the provisions
(ii) Complaints as to interference with inter-state water supplies, referred to the statutory tribunal mentioned in Article 262.
(iii) Matters referred by the finance commission (Art. 280)
(iv) Adjustment of certain expenses between the unions and the state (Art 290)
Writ Jurisdiction
➤ Every individual has the right to move the supreme court directly by appropriate proceedings for the enforcement of his fundamental rights.
➤ Article 32 imposes duty on the supreme court to enforce the Fundamental rights.
Appellate Jurisdiction
➤ It is three fold
1. Constitutional — In constitutional matters an appeal lies to the supreme court if the High court certifies that the case involves a substantial question of law as to the interpretation of the constitution.
2. Civil – In civil cases, an appeal lies to the Supreme Court if a High Court certifies that the value of the subject matter of the dispute as fit for appeal to the supreme court.
3. Criminal– In the criminal cases, an appeal lies to the supreme court if the High Court :
(i) has withdrawn for trial before itself any case from any subordinate and has in such trial convicted the accused and sentenced him to death.
(ii) Certifies that the case is fit for appeal to the supreme court.
Advisory Jurisdiction
➤ If the president seeks the advice of Supreme Court. It is duty bound to give its opinion.
➤ The Supreme Court’s decision is not bound to the president.
Revisory Jurisdiction
➤ The Supreme court under article 137 is empowered to revive any judgement or order made by it with a view to removing any mistake or error that might have crept in the judgement or order.
➤ It is a “court of record” as its decisions are of evidential value & can be used as precedent in any court.
➤ The Supreme Court also enjoys the power of judicial review as it can ensure that the laws passed by legislature and order issued by the executive do not contravene any provision of the constitutions.
➤ The supreme court decides disputes regarding the election of the president and the vice president.
➤ The supreme court recommends the removal of members of UPSC to the president.

HIGH COURT

➤ According to Article 214 there shall be a High Court for each state.
➤ The High courts stand at the head of the judiciary in a state.
➤ Article 215 says that every high court shall be a “Court of Record”.
➤ Kolkata High Court is the oldest High Court of India.
Appointment of Judges
➤ According to Article 216, every High Court consists of a Chief Justice and such other judges as appointed by the president from time to time.
➤ Our constitution does not fix the number of judges for a High Court.
Eligibility
(i) He must be a citizen of India.
(ii) He must have held a judicial office in the territory of India for at least 10 years.
(iii) Must have been an advocate of a High Court or two or more such Courts in succession
(iv) He has worked as a judge of a state high court for at least 5 years.
(v) He should be distinguished jurist in the opinion of the President of India.
Oath : By Governer.
Age of Retirement /tenure :
62 years.
Removal : The judge of the High Courts can be removed from the service in the very same way as that of the Supreme Court.
Salaries & Allowances
➤ Determined by the Parliament.
➤ Monthly Pension equal to 50% of his last drawn salary.
➤ Charged on the consolidated fund of state and are not subject to vote in the state legislature.
Transfer of a Judge
➤ According to Article 222, The President may after consultation with the chief justice of India transfer a Judge from one High Court to any other High Court.
➤ Consultation with the chief Justice of India (act) ➤ The opinion provided by the CJI is the binding on the president.
Jurisdiction of the High Court
Original Jurisdiction
➤ The High Court of presidency towns (Bombay, Calcutta & Madras) have both original and appellate jurisdiction.
➤ Only in matters of admiralty. Probate matrinominal and contempt of court. They have original jurisdication.
Appellate Jurisdiction
➤ As courts of appeal all High Courts enter to in appeal in civil and criminal cases from their subordinate courts as well as on their
Writ Jurisdiction
➤ According to Article 226, the High Courts are given powers of issuing writs not only for the enforcement of the fundamental Rights, but also for other purposes.
➤ The High Courts may issue writs, orders and directions under Article 226.
➤ The jurisdiction to issue writs under this article is larger in the case of High Courts than the jurisdiction of the supreme court.

COMPARISON BETWEEN SUPREME COURT AND HIGH COURT

Supreme CourtHigh Court
1. This is the union court and the apex institution of the united court system.1. The High Court is constituted in every State for a group of states.
2. All the Judges of the Supreme Court, retire on attaining the age of 65 years.2. The Judge of the High Court retires after attaining the age of 62 years.
3. The Judges of the Supreme Court cannot do their practice after retirement. These are also restricted during their tenure.3. The Judge of the High Court cannot do his legal practice during his tenure but we can do this after his tenure in any High Court or Supreme Court. He cannot do his legal practices in courts below High Court.
4. The Judges of the Supreme Court cannot be transferred and cannot be promoted.4. The Judges of the High Courts are transferrable to the other high courts. They can be promoted upto Judge of the Supreme Court.
5. The Supreme Court is not bounded to obey the decisions of the High Courts or any other courts.5. The High Courts are bounded to obey the decision of Supreme Court.
6. The Supreme Court only has the power to take decisions regarding constitutions.6. The High Court has no power to take decisions regarding constitution.
7. The cases involving the interpretation of the Constitution are decided only by the Supreme Court.8. The cases involving the interpretation of the Constitution are not decided by the High Court.
8. The Supreme Court can issue writs only for the enforcement of fundamental Rights9. High Court can issue writs not only for the enforcement of fundamental Rights but also for any other purpose.
9. A remedy under Article 32 in in Itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction.10. A remedy under Article 226 is discretionary and hence, a High Court may refuse to exercise its writ jurisdiction.

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